Using Hypotheticals When Debating Law in the Blogosphere

Lawyers often explore legal arguments by offering “hypotheticals,” or “hypos” for short. A hypothetical is a “what if” scenario designed to question a legal principle. The idea is to change the facts to something very different than the one before us to see how the offered legal principle would apply to that set of facts. In many cases, the goal is to show that the rule under consideration isn’t workable or has some problem that isn’t obvious from the application of the rule to the facts that presently exist. In that sense, hypos are ways of criticizing legal rules by showing problems with how they apply.

As common as they are in discussions of law generally, I find that hypos often fall flat when debating law in the blogosphere. The problem, I think, is that a lot of people who argue about law in the blogosphere tend to draw different lessons about hypotheticals than what would be intended in an oral argument in court or in in a law school setting. In particular, those with legal training recognize that the facts of hypoetheticals often are intentionally very different from the existing facts, and that the point of the hypo is to test how the legal rule works or doesn’t work. On the other hand, those without legal training — and that includes a lot of blog commenters — sometimes think that the purpose of the hypo is to make a claim that the facts of the hypo are similar to the known facts.

Here’s an example. Let’s say we’re debating animal rights, and Commenter #1 passionately favors legal protection for animals. Commenter #1, thinking about what law might be used to protect horses, farm animals, and pets, proposes the following rule: It should be a crime to kill any living thing. Commenter #2 wants to criticize the proposal as being over broad, so he raises a hypo: Imagine a person has a staph infection, and he takes medicine to help kill the bacteria. Is the person guilty?

To someone with legal training, it’s understood that the purpose of the bacteria hypo is to point out the overbreadth of having the crime include “any living thing” — a phrase that seems to include bacteria. But my sense is a significant number of non-lawyer blog commenters tend to see the obvious difference between the concerns of Commenter #1 and the facts of #2’s hypo as some sort of dismissal of #1’s concern rather than a criticism of the proposed rule. So the hypo might draw angry responses from #1 or others who support animal rights that #2 isn’t committed to protecting horses and pets or sees them as no more than bacteria that can be killed off.

To #2, these criticisms miss the point. The point of the hypothetical was to pick facts as different as possible from the scenario #1 had in mind (but still technically within the rule), not to say that the hypothetical facts were similar to those #1 had in mind. That point often gets lost. The lesson, I think, is to be careful with hypotheticals when debating law in the blogosphere. Often they bring about confusion rather than clarity.